Terms of asset supply (“Supply Terms”).
1. Unless otherwise agreed in advance and in writing by Lifecycle Plus, Supply Terms, a Purchase Offer and GRA(s) for Assets constitute the entire agreement in relation to the Supplier’s supply of those Assets to Lifecycle Plus (“Contract”).
2. A Contract supersedes all prior understandings, arrangements and agreements between Lifecycle Plus and Supplier in relation to the Assets the subject of the Purchase Order.
3. Lifecycle Plus is under no obligation to make a Purchase Offer.
4. Purchase Offers are made subject to the Assets being inspected by Lifecycle Plus (“Inspection Basis”) unless agreed in advance in writing by Lifecycle Plus.
5. Where a Purchase Offer is made on an Inspection Basis, Lifecycle Plus may at its discretion make deductions from the Purchase Price to account for any defects, faults or damage in condition, functionality or operability of the Assets, or where the Assets described in the Purchase Offer have not been received by Lifecycle Plus or if received are incomplete or missing parts, components or power adaptors (“Deductions”).
6. Lifecycle Plus may make Deductions by reference to:
a. Asset details as set out in GRA(s);
b. a Diminished Value Matrix; or
c. any other document or methodology as Lifecycle Plus deems reasonable in the circumstances.
7. For Inspection Basis purchases, where Lifecycle Plus has:
a. made payment of the Purchase Price prior to inspection, Supplier will on demand pay to Lifecycle Plus the amount of any Deductions; or
b. not made payment of the Purchase Price prior to inspection, Supplier will issue Lifecycle Plus with a tax invoice for a sum equalling the Purchase Price less the amount of any Deductions.
8. In the event that Supplier delivers Assets to Lifecycle Plus without notice and Lifecycle Plus decides not make a Purchase Offer, Supplier will at its own cost and expense immediately remove the Assets from Lifecycle Plus or its agents’ premises. Should Supplier fail to immediately remove the Assets and/or Lifecycle Plus agrees that it will return the Assets to Supplier, Supplier will pay Lifecycle Plus on demand for all costs and expenses incurred by Lifecycle Plus including administration, storage, return or disposal costs and expenses (as the case may be).
9. Unless otherwise agreed in advance in writing by Lifecycle Plus, a supply under a Contract is exclusive of GST and Lifecycle Plus or Supplier (as the case may be) must pay to the other the GST Amount at the same time that it pays for the supply to which the GST Amount relates.
10. Lifecycle Plus may at its determination provide to Supplier services associated with Assets (“Services”). The provision of Services is subject to the provisions of Lifecycle Plus’ Services Terms.
11. Lifecycle Plus may elect (regardless of any provision of Lifecycle Plus Services Terms) to deem its fees for Services to be a Deduction.
12. Lifecycle Plus may deem that an Asset requires recycling (“Recycling”). Recycling is subject to Lifecycle Plus’ Services Terms.
13. Unless otherwise agreed in advance in writing by Lifecycle Plus, it will:
a. make a Deduction amounting to the full Purchase Price of the Recycled Asset; and
b. deem (regardless of any provision of Lifecycle Plus Services Terms) its fees for Recycling to be a Deduction.
14. Unless otherwise agreed in advance in writing by Lifecycle Plus, title in an Asset passes from Supplier to Lifecycle Plus upon Lifecycle Plus providing Supplier with a GRA for that Asset.
15. Supplier warrants that on that date that title in an Assets passes to Lifecycle Plus, Supplier:
a. holds title to the Asset free and clear of any Encumbrance or any third party rights whatsoever; and
b. is capable of passing full, valid and unimpeachable legal and beneficial title in the Assets to Lifecycle Plus,
Risk in Assets
16. Risk in an Asset only passes to Lifecycle Plus upon Lifecycle Plus receiving the Asset at Facility, prior to which event, risk in the Asset remains with the Supplier. For the avoidance of doubt and without limitation, Lifecycle Plus initiating, managing, performing or paying for Transport of an Asset does not cause risk in that Asset to pass to Lifecycle Plus.
17. Where risk in an Asset has passed to Lifecycle Plus, it remains with Lifecycle Plus until it leaves Facility.
18. Prior to an Asset being received by Lifecycle Plus at Facility, Lifecycle Plus is not liable or responsible for, nor does it assume any liability or responsibility to protect against, Data on or in that Asset being:
a. misused, interfered with, lost or stolen;
b. accessed, modified or disclosed; or
c. otherwise released to a third party,
or the consequences arising from any such event, in any circumstances including during Transport.
19. The provisions in clauses 16 to 18 apply in all circumstances and are not affected by Lifecycle Plus being engaged by Supplier (or any other person) to erase Data from an Asset.
a. except where Supplier engages Lifecycle Plus by prior written agreement to erase Data, Supplier warrants to Lifecycle Plus that Assets do not hold any Data (“Data Warranty”); and
b. Supplier maintains a recoverable backup of Data (“Back-Up Warranty”).
21. Without creating or Lifecycle Plus assuming any obligation to investigate whether:
a. Assets hold Data; or
b. Supplier has breached its Data Warranty,
where Lifecycle Plus discovers that Supplier has breached its Data Warranty in relation to any Assets, Lifecycle Plus may:
c. at its discretion erase or delete that data from the Assets or physically destroy Drives (using any erasure, deletion or destruction methods Lifecycle Plus sees fit to use) without any further reference to Supplier (“Wipe”); and
d. (without limiting in any way the operation of any of the Indemnities below) elect that:
i. Supplier pay to Lifecycle Plus on demand; or
ii. Lifecycle Plus deems as a Deduction,
the costs of any Wipe.
22. Supplier is deemed to have consented to Lifecycle Plus performing all Wipes (and to have obtained such consent, if necessary, from any applicable third parties).
23. Without limiting in any way the Indemnities below, under no circumstances will Lifecycle Plus be responsible or liable to Supplier or any third party for:
a. any loss, deletion or destruction of, or loss of access to Data or Supplier or third party systems; or
b. a failure or part failure to perform a Wipe or any defect or error in any Wipe,
or for any consequences of any event set out in clause 23(a) or (b) occurring.
24. Unless otherwise agreed in advance in writing by Lifecycle Plus, any engagement of Lifecycle Plus by Supplier to erase Data from Assets is subject to the provisions contained in Lifecycle Plus’ Services Terms.
25. In the event that Lifecycle Plus destroys any Drives (during a Wipe or during an erasure engagement under Lifecycle Plus’ Service Terms), Lifecycle Plus:
a. is not liable or responsible to pay any compensation to Supplier for; and
b. may deem any consequential reduction in value of the Asset as a Deduction due to,
26. Supplier must:
a. not disclose Confidential Information to any person without the prior written consent of Lifecycle Plus;
b. only use Confidential Information to the strict extent it is necessary to so do for the operation of the Supply Terms;
c. maintain the confidentiality and security of Confidential Information; and
d. take all steps necessary to safeguard the confidentiality of Confidential Information.
27. Supplier’s obligations of confidentiality do not extend to Confidential Information which:
a. is or becomes public knowledge without the fault of Supplier or a person to who Supplier has disclosed that Confidential Information;
b. is or becomes available to Supplier from a source other than Lifecycle Plus, unless such source has disclosed that Confidential Information in breach of obligations of confidentiality it owes to Lifecycle Plus; or
c. is independently developed by Supplier without reference to or use of Confidential Information.
28. A receiving Party may disclose Confidential Information strictly to the extent it is necessary to conform to an applicable law provided that prior to such disclosure, Supplier:
a. notifies Lifecycle Plus of the requirement to make and the details of, that disclosure; and
b. allows Lifecycle Plus reasonable opportunity to resist such disclosure.
29. Supplier must:
a. comply with all applicable Privacy Legislation in relation to Lifecycle Plus’ Personal Information, whether or not Supplier is an organisation bound by Privacy Legislation;
b. not do anything or omit to do anything with Lifecycle Plus’ Personal Information that will cause Lifecycle Plus to breach any Privacy Legislation;
c. take all reasonable steps to ensure that the Lifecycle Plus’ Personal Information is protected against any misuse, loss, unauthorised access, modification or disclosure;
d. ensure that Supplier’s personnel, agents and representatives complete such privacy training as may be required to ensure their compliance with this clause 29;
f. not transfer Lifecycle Plus’ Personal information outside the country in which it was disclosed to Supplier by Lifecycle Plus without Lifecycle Plus’ prior written consent.
30. If Supplier becomes aware or suspects that:
a. there has been unauthorised access to, or unauthorised disclosure of, Lifecycle Plus’ Personal Information or Confidential Information ("Information Breach"); or
b. Lifecycle Plus’ Personal Information or Confidential Information has been lost in circumstances where unauthorised access to, or unauthorised disclosure of, the Lifecycle Plus’ Personal Information or Confidential Information may occur (“Loss of Information”),
then Supplier must immediately notify Lifecycle Plus of that Information Breach or Loss of Data.
31. If Lifecycle Plus becomes aware, or suspects, that:
a. an Information Breach or a Loss of Data has occurred; or
b. Supplier has (or ought to have) notified Lifecycle Plus of an Information Breach or Loss of Data in accordance with clause 30,
then Supplier must:
c. Immediately disclose to Lifecycle Plus all information relevant to that actual or suspected Information Breach or Loss of Data (including all relevant information about the processes, procedures, protocols, and security practices and procedures used by Supplier);
d. co-operate with Lifecycle Plus in investigating whether an Information Breach or Loss of Data has occurred and the circumstances surrounding that Information Breach or Loss of Data;
e. give Lifecycle Plus all information and access to Supplier’s premises, staff, processes and systems reasonably required by Lifecycle Plus for the purpose of carrying out an investigation into the actual or suspected Information Breach or Loss of Data; and
f. advise Lifecycle Plus of the steps taken to stop the Information Breach, the steps taken to prevent any future compromises of the same or a similar type and the steps taken to recover or rectify any compromised Lifecycle Plus’ Personal Information or Confidential information.
32. All LIPR and Know-How remains the property of and vests in Lifecycle Plus. Nothing in Supply Terms or Contracts confers any right, title or interest in LIPR or Know-How on or to Supplier.
33. In the event Supplier obtains any right, title and interest in LIPR or Know-How, Supplier hereby assigns to Lifecycle Plus all such present and future rights, title and interest in LIPR and Know-How.
34. Supplier agrees to perform on demand all further acts necessary to perfect any of Lifecycle Plus rights under clause 33, including by the execution of any deeds or documents.
35. Supplier will promptly provide Lifecycle Plus with all information it requests under or in connection with Supply Terms and Contracts (“Supplier Information”).
36. Supplier warrants to Lifecycle Plus that:
a. all Supplier Information is complete, true, accurate, not misleading or deceptive; and
b. Supplier will immediately notify Lifecycle Plus in writing of any change to any Supplier Information,
Warranties and representations
37. All warranties given and representations made by Supplier to Lifecycle Plus in Supply Terms are made and given on an ongoing basis.
38. Supplier gives and makes the following warranties and representations to Lifecycle Plus:
a. if Supplier is a corporation, it is duly organised, validly existing and in good standing in all jurisdictions where the nature of the business transacted by it makes such qualification necessary;
b. Supplier has the power, and has taken all necessary actions, to enter into, execute, deliver and carry out the terms and provisions of Supply Terms and Contracts and other documents to be executed and delivered as contemplated under Supply Terms and Contracts;
c. Supply Terms and Contracts are valid and binding on Supplier in accordance with their terms;
d. Supplier has authority to make the representations and warranties in Supply Terms;
e. there is no proceeding pending or threatened, or any other event, matter, occurrence or circumstance which to Supplier’s knowledge, challenges or may have a material adverse impact on Supply Terms or Contracts or the ability of Supplier to perform its obligations under Supply Terms or Contracts (and Supplier must immediately notify Lifecycle Plus of any such event that occurs);
f. Supplier will comply with and do all things reasonably necessary to help Lifecycle Plus comply with all federal, state, and local laws, regulations, and ordinances in connection with Supply Terms and Contracts;
g. Supplier is not in breach of, nor will cause Lifecycle Plus to breach any third party Intellectual Property Rights in the performance of Supply Terms or Contracts.
39. Supplier will defend, hold harmless and indemnify Lifecycle Plus from and against any and all claims, damages, costs (including all legal costs), liabilities and governmental or regulatory action (including any third party claims and liabilities) arising as a consequence or result of:
a. Supplier breaching its Title Warranty, Data Warranty, Back-Up Warranty or Information Warranty;
b. Supplier breaching any other warranties it has given to Lifecycle Plus under Supply Terms;
c. any representation made by the Supplier to Lifecycle Plus in Supply Terms being incomplete, untrue, inaccurate, misleading or deceptive;
d. any breach of Supply Terms by Supplier;
e. an event of Information Breach or Loss of Data; or
f. a failure or part failure to perform a Wipe or any defect or error in any Wipe by Lifecycle Plus,
40. Supplier must not set off any sums owing to it by Lifecycle Plus against any sums Supplier owes to Lifecycle Plus, without the prior written consent of Lifecycle Plus. Lifecycle Plus may set off any sums owing to it by Supplier against any sums Lifecycle Plus owes to Supplier, without needing to give notice to or obtain the consent of Supplier.
41. Lifecycle Plus and Supplier are independent contractors and nothing in Supply Terms or a Contract may be construed as creating a relationship of employment, of partnership, of joint venture, of principal and agent or of trustee and beneficiary.
42. Supplier has no right or authority to and must not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of Lifecycle Plus or bind Lifecycle Plus in any way.
43. Lifecycle Plus may subcontract the performance of the Contract or part thereof to any third party at any time without notice to Supplier or the consent of the Supplier being required.
44. Lifecycle Plus may transfer, assign or novate its rights or obligations under Supply Terms or Contracts without Supplier’s consent. Supplier must not transfer, assign or novate its rights or obligations under Supply Terms or Contracts without Lifecycle Plus’ prior written consent.
45. Lifecycle Plus may revise, amend or cancel Supply Terms (“Revised Terms”) at any time and by way of any of the following:
a. giving Supplier notice; or
b. posting Revised Terms on Lifecycle Plus’ website, and
by continuing to accept Purchase Offers, Supplier agrees:
c. to be bound by Revised Terms; and
d. any and all resulting Contracts will be governed by the Revised Terms.
46. Other than in the case of Revised Terms, any amendment or variation of any provisions of Supply Terms or Contracts must be by prior written agreement of Lifecycle Plus.
47. Lifecycle Plus excludes to the extent permitted by law all guarantees, terms, conditions, warranties, inducements or representations whether express or implied, statutory or otherwise, which would otherwise be implied into Supply Terms concerning the activities covered by Supply Terms. Supplier agrees that it does not rely on any guarantee, term, condition, warranty, undertaking, inducement or representation made by or on behalf of Lifecycle Plus which is not expressly stated in Supply Terms. Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to Supply Terms and Lifecycle Plus is not able to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (“Non-Excludable Provision”) and Lifecycle Plus is able to limit the remedy of Supplier for a breach of the Non-Excludable Provision, then Lifecycle Plus’ liability for breach of the Non-Excludable Provision is limited to (at Lifecycle Plus’ election):
a. in the case of goods, the repair or replacement of the goods or the supply of equivalent goods (or the payment of the cost of doing so); or
b. in the case of services, the supply of the services again (or payment of the cost of doing so).
Subject to Lifecycle Plus’ obligations under the Non-Excludable Provisions and clauses 48, 49 and 50, Lifecycle Plus’ maximum aggregate liability to Supplier in respect of any one claim or series of connected claims under Supply Terms or in connection with its subject matter, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, or under an indemnity or otherwise (“Claim”) is limited to an amount equal to the lesser of $100,000 or the amount paid to Lifecycle Plus by Supplier under Supply Terms in the six months preceding the events giving rise to the Claim.
48. Any liability of Lifecycle Plus for any loss or damage under or in connection with Supply Terms or Contract will be reduced in proportion to the extent that Supplier or its agents caused or contributed to that loss or damage.
49. Lifecycle Plus will not in any circumstances be liable to Supplier or any third party for any indirect, incidental, special or consequential loss or damage which arises out of the performance or failure to perform any obligation contained within or connected to Supply Terms or Contracts, whether the claim is in contract, tort (including negligence), strict liability or otherwise.
50. Supplier must take all reasonable steps to mitigate any costs, expenses, loss, liability or damage it suffers or incurs in relation to or in connection with Supply Terms or a Claim. Where this clause 50 conflicts or contradicts any other provision in Supply Terms, this clause 50 shall prevail and the other provision shall be modified but only to the extent to give effect to this clause 50.
51. In the event of any provision of Supply Terms becoming invalid, illegal or unenforceable for any reason, such provision will be deemed to be severed from the other provisions of Supply Terms, and such invalidity, illegality or unenforceability will not affect any other provisions of Supply Terms which will remain valid and in force.
52. A failure, delay, or indulgence by Lifecycle Plus in exercising any power or right conferred on it by Supply Terms does not operate as a waiver of the power or right. A waiver of any right or power of Lifecycle Plus under Supply Terms does not operate as a waiver of any other breach by Supplier.
53. Lifecycle Plus will not be liable for any delay or failure to perform its obligations under Supply Terms if such delay is due to an event of Force Majeure.
54. The following will survive termination of Supply Terms:
a. Supplier’s obligations regarding Confidential Information and Lifecycle Plus’ Personal Information;
b. Title Warranty, Data Warranty, Back-Up Warranty and Information Warranty;
c. any other warranty given or representation made by Supplier to Lifecycle Plus in Supply Terms;
d. any Indemnity;
e. any other provision of Supply Terms which by its nature should survive termination of Supply Terms.
55. Supply Terms and Contracts are governed by and construed in accordance with the laws of New South Wales, Australia. Lifecycle Plus and Supplier submit to the exclusive jurisdiction of the courts of New South Wales, Australia in respect of all matters arising out of or relating to Supply Terms or a Contract, its performance or subject matter.
56. Lifecycle Plus may give notices to Supplier by email to Supplier’s last known email address and are taken to be delivered upon receipt by Lifecycle Plus of an acknowledgment that the communication has been properly transmitted to Supplier. Supplier may give notices to Lifecycle Plus by email to firstname.lastname@example.org and are taken to be delivered upon such email entering the electronic systems of Lifecycle Plus.
“Asset” means any technology equipment or good.
“Business Day” means a day other than a Saturday or Sunday or any public holiday declared in New South Wales, Australia.
“Confidential Information” means confidential information of Lifecycle Plus in verbal, written or in any other form including electronic form; knowledge or information regarding Lifecycle Plus’ business transactions, affairs, property, policies, pricing, processes, activities, financiers or finance partners; any document which is marked confidential by Lifecycle Plus; and any document, tangible item or information which Lifecycle Plus advises Supplier is confidential or which Supplier knows or ought to know is confidential.
“Data” means data, information or other similar material contained on or in an Asset and/or its parts or components, including where it is defined as Personal Information or Personal Data in and subject to Privacy Legislation.
“Diminished Value Matrix” means a document provided by Lifecycle Plus to Supplier detailing a method for calculating Deductions.
“Drive” means a hard disk drive, solid state drive or other data storage device or media.
“Encumbrance” means an interest or power reserved in or over an interest in an asset, including any retention of title; an interest or power created or arising in or over an interest in an asset under a bill of sale, mortgage, charge, lien, pledge, trust or other similar instrument, device or power; or any other adverse right, title or interest of any nature, by way of security for the payment of a debt or the performance of any other obligation, and includes any agreement or arrangement (whether legally binding or not) to grant or create any of the above.
“Facility” means a facility, site or other location operated by Lifecycle Plus.
“Force Majeure Event” means without limitation any insurrection or civil disorder, war or military operations, terrorist act, pandemic or epidemic, national or local emergency, acts or omissions to act of any Governmental Authority, compliance with any statutory, regulatory or legal obligation, severing by a third party of national or international telecommunications facilities, fire, earthquake, lightning, explosion, flood, subsidence, weather of exceptional severity, closure of transport or shipping lanes or any other cause outside of Lifecycle Plus’ reasonable control.
“GRA” means a goods received advice report generated by Lifecycle Plus which details the Assets received by Lifecycle Plus from Supplier. A GRA may include specifications, quantities, details and the condition of the Assets and Deductions.
“GST” means a goods or services tax imposed by or through GST Legislation.
“GST Amount” means the amount of GST payable on receiving any taxable supply under a Contract, calculated at the rate of GST in the applicable GST Legislation.
“GST Legislation” means where a supply is made in: Australia the A New Tax System (Goods and Services Tax) Act 1999; in Singapore the Goods and Services Tax Act 1993; in New Zealand the Goods and Services Tax Act 1985.
“Intellectual Property Rights” means all intellectual property rights, whether or not now existing, both registered and unregistered, protected by statute, common law or equity in Australia or elsewhere in the world, including copyright, trade marks, designs, patents, patentable information, circuit layouts and plant varieties, licences and other rights to possess and use the works and other subject matter of intellectual property rights, trading names and domain names, but excluding moral rights.
“ITSG” means Industry Trading Pte. Ltd., Singaporean Unique Entity Number 201910623Z.
“Know-How” means the know-how, ways of doing things, processes and procedures of Lifecycle Plus.
“Lifecycle Plus” means LPAU, ITSG or LPNZ (as the case may be).
“Lifecycle Plus’ Personal Information” means information or data in the nature of Personal Information provided by Lifecycle Plus or Personnel to Supplier.
“Lifecycle Plus’ Service Terms” means Lifecycle Plus’ Terms of Service as set out (and as amended from time to time by Lifecycle Plus) at https://lifecylce.plus/service-terms/
“LIPR” means all Intellectual Property Rights which are owned by, or licensed to, or created, developed by Lifecycle Plus or made available by Lifecycle Plus in carrying out its obligations under Supply Terms or Contracts (including any improvements, modifications or developments thereto).
“LPAU” means Industry Trading Pty Ltd ATF Industry Trading Unit Trust trading as Lifecycle Plus, Australian Business Number 84 675 175 616.
“LPNZ” means Lifecycle Plus Limited, New Zealand company number 6295355.
“Personal Information” has the same meaning as that defined in Privacy Legislation and is also a reference to the term Personal Data where the term Personal Information is not defined in the appliable Privacy Legislation.
“Privacy Legislation” means the Australian Privacy Act 1988 (Cth), the Singaporean Personal Data Protection Act 2012, the New Zealand Privacy Act 2020 or any other similar law applicable to Data.
“Purchase Offer” means an offer made by Lifecycle Plus to purchase Assets from Supplier.
“Purchase Price” means the price to purchase Assets as detailed in a Purchase Offer.
“Supplier” means the person that wishes to supply Assets to Lifecycle Plus.
“Transport” means Lifecycle Plus taking possession of and/or transporting an Asset.
The following rules of interpretation shall apply unless the text otherwise dictates:
headings are for convenience only and do not affect the interpretation of the underlying text; the singular includes the plural and vice versa; any thing includes the whole and each part of it; where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; the words ‘such as’ and ‘including’ and similar expressions are not used as nor are they intended to be interpreted as words of limitation; when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day; a person means a natural or legal person of any type or form; an item includes a part of that item; a reference to a person includes its successors and permitted assigns; a clause, term, schedule or attachment is a reference to a clause or term of, or schedule or attachment to these Supply Terms; applicable law includes any relevant legally binding decree, law, Ministerial decision, regulations, rule, order, by‐law, ruling, decision or directive issued by a Governmental Authority or Court, and, in each case is a reference to that applicable law as amended, consolidated, re-enacted or replaced.